*1 Phy. 1925.] v. indorsement on the note in in view of question, but the fact that he so, testified as done having court was such right motion. denying In the what light of has been deemed said is not necessary consider to other minor assignments error. judgment lower is affirmed.
Affirmed. concur. J., JJ., C. McBride, Bean Brown, May Submitted on briefs at Pendleton denied October re- reversed June hearing 1925. W. PHY PHY. T. WINNIFRED W. 751; 237.) 240 Pac. Alimony” Synony- Divorce—“Maintenance” and “Permanent are mous Terms. 1. “permanent alimony” synonymous “Maintenance” are
terms, and money constitute an allowance in to be recovered the one in fault party. of innocent Divorce—Burden on Divorced Wife to Fact Overcome of Re- marriage Respects Application Modify Awarding as Decree Alimony. Though remarriage ipso 2. of divorced wife does not facto obligation terminate where former pay alimony decreed, husband’s application regularly awarding made decree alimony, and is shown, divorced wife burden -of show- ing circumstances to overcome of marriage, fact placed on di- vorced wife. Awarding Regarded Divorce—Decree Wife Final, Maintenance Arising Where from Consideration of Property Restitution of Brought to Husband Wife. 3. When allowance or maintenance arises from con- property brought restitution sideration wife, awarding regarded such maintenance as final adjudica- tion matter. L. 2. 1 R. C. See 950. Support Her, Wife, Remarrying Divorce—-Divorced One Able Right Support Waives from Former Husband. to Claim alimony, remarried, it not 4. Where divorced awarded contended, being any brought property into estate ever she husband, of her was based former or that award of *2 relinquishment any property being rights, of but it admitted by present amply supporting her,
her wife husband was held that remarriage legal right hus- support former waived to claim band, empowered to L., and under Section Or. was modify decree so as fit situation. ON PETITION POR REHEARING. Alimony Subject
Divorce—Decree for is to Modification. alimony 511, 513, 514, L., 5. Under Sections a decree for subject by entered, is according to modification the court which was varying parties. circumstances of the Stipulation “Alimony” Relating to Divorce—Words in of Parties Ordinary Meaning. are to be Their Given stipulation parties relating payment ali- ali- 6. Words in mony, awarding upon which the court based its decree being mony, given “alimony” ordinary meaning; are to be their compelled pay which the husband for his wife’s the allowance is living apart while from him she has maintenance she or after been divorced. Divorce—Right Alimony upon Relation of Parties. Rests right alimony parties. rests the relation of the 7. The Duty Remarries, New of Fur- Divorce—When Wife Husband has nishing Her Maintenance. wife, duty it when the is the 8. While of the husband to his duty wife marries another man it becomes nevertheless her to furnish maintenance. latter by “Alimony,” Decree, Made Debt Due Divorce—Award Wife, by Constitutes Maintenance but Prescribed and Defined Law. “alimony,” by deeree, made Award of not a due 9. debt prescribed wife, constitutes maintenance but and defined law. Divorce—Designated Property, Alimony Stip- Awarded to Wife in ulation, to Her Forever. Went Designated property, awarded to stipula- wife 10. her forever. tion, went * Husband Held Entitled to Discontinance of Divorce—Divorced Stipulation Alimony Parties, on Awarded Re- Wife’s Man. Another stipulation, awarding on which a decree Where 11. that, in the event a divorce was based, provided granted, was L. 946. C. 1 R. See 5. L. R. C. 947. 11. See Phy. 1925.] property should constitute settlement and settle- alimony,
ment of but did not show that awarded property rights based on and did not determine alimony, merely pay- amount of but recited the maximum amount period payment, that, able and limited held remar- wife’s riage continuance of man, to another the divorced was entitled to a dis- payment alimony. of further (1)19 (2) See C. J. 202. 324 (1926 Anno). (3) C. J. (4) C. J. 276. 19 C. J. 276. Judge.
From Union: J. W. Knowles, In Banc. appeal
This denying is an from an order a mo- tion to divorce to Winni- fred ~W. on October the Circuit 16, 1922, County, originally brought Court of Union in a suit against her her T. husband, W. August during
On 31, 1922, and the course of litigation, plaintiff their and defendant entered *3 into provided: a settlement, wherein it was agreement property “That is a settlement alimony, and shall be taken a full as and com- plete property settlement of all interests and ali- mony between party and neither hereto compelled pay, be party shall to nor either hereto any property can alimony more recover, or than is as herein set out. And such settlement alimony and of shall be in full for all property rights, attorney’s alimony, costs, and fees, any suit whatsoever.” appears by way from the contract that, of plaintiff agreed settlement to transfer defendant 170 shares of stock in Hot Lake Sana- Chiekering Baby torium and to deliver to her a piano. promised He pay Grand likewise alimony as follows: “Five day hundred dollars on or before fifth September,
of and on or $500 before the fifth
116 Or.—3 of and before day October, 1922, $100 day every fifth of each month thereafter which sixty-five months; not period exceed said snm of payment aggregate shall not exceed an in lieu $7,500; payment which shall be of of all other said heretofore ordered made court; provided, however, payments all prior shall September, 1922, the first of day forth as set considered of said part in this agreement.” its de- basing
On the trial of the cause the court, cision fact conclusions findings its divorce law therein a decree entered, cross-complaint, W. her Phy upon "Winnifred referred part made a the decree the above. April, on the twelfth Thereafter, day motion to filed a T. husband, the divorced Phy, W. to ali- far as it related the decree so that such order of the court mony, prayed Winni- the reason that discontinued for alimony be denied the had remarried. PhyW. fred to this court. Phy appeals motion,
Reversed. a brief over the name there was appellant For & Eberhard. Messrs. Cochran a brief there was over the names respondent For Milton B. Ma>gill Klepper. and Mr. F.W.Mr. This caseinvolves right J. BROWN, *4 has remarried who to continue col wife divorced former from her husband provided as alimony lect divorce. decree in the an allowance
*‘Alimony support, which is upon considerations equity public made Oct. 1925.] v. Pht.
policy. recoverable the wife It is based is not upon damages, penalty. debt, as obligation, growing relation, out of obliga- support his wife—an that the tion without her fault.” must legal separation a which even after continues Marriage, Divorce, 2 Schouler, ed.), (6 Separation § 1754. Delations and Domestic per maintenance and 1. This court has held that alimony synonymous and consti terms manent aré money, recovered from tute an to be allowance support the innocent the one in fault for the party: Huffman, 47 Huffman 943). Rep. 114 Am. St. remarriage “The her a divorced wife cuts off
right remarriage, date of her may be reduced to nominal sum where man the wife has remarried with a able to only sup or retainéd sum sufficient her, port Marriage, of the minor children.” Schouler, Separation ed.), and Domestic Divorce, Relations § 1834. In 19 C. J. the editors announce the remarriage while that, doctrine a divorced wife’s ipso to another does not release the former facto obligation pay alimony, husband’s it affords a cogent reason for the court to or vacate awarding alimony, “especially where man wife marries a is able who afford her a support; applies and the reasonable rule to a de incorporating cree based an parties, well as to between one founded ’’ testimony. remarriage effect of of the wife allowance treated as follows in L., R. C. 950: p. positive “Aside from its unseemliness,
illogical (the and unreasonable that she divorced *5 Phy. v. 36 wife) equivalent obligation should have the of an support by way for from a former hus- obligation present and an band, from a husband adequate support for an same time. privilege provision by her to abandon the de- made cree of the court her for under sanctions provision law, another for maintenance by marriage, which she would obtain when she has done so the a second law„ require will her to why abide her election as there reason is no she should not do so.” p. 30 A.
See L. 11 Ann. R., 79, note; Cas. (100 Carlton note; Carlton, v. Fla. 460 87 South. 745). general remarriage
2. It
is a
rule that
a divorced wife does not of itself
terminate
obligation
pay
former husband’s
(67
decreed: Brandt
Brandt,
v.
3. allowance for or maintenance consideration, from a arises the restitution of property brought to the husband awarding such maintenance should be re adjudication garded as a final of the matter. But, speaking Mr. said Justice Wolverton as 1925.] Brandt, 40 Or. this court Brandt v. 510): support and “Where-it is made as a matter changed merely,
maintenance then the condition parties, the faculties of the where acquired have or the divorced wife has diminished, *6 support, other facilities or will warrant means of diminishing such a ting cut revision- or or modification, may reason off the allowance in as seem toto, authorities). proper (citing able and numerous * * persuasive remarriage The of the wife is calling for court’s exercise of the circumstance, an modify authority discretion and rebate the to allowance.” 19 J. See, C. also, 276. Henderson,
The case of Henderson 37 Or. Rep. Pac. Am. St. 766), upon by 48 L. R. A. defendant in is relied support ruling court. of the lower that But case based a like of facts. The set required decree of M. de- Henderson, W. maintain child to and the minor fendant, marriage during minority, pay his and to plaintiff during the term of her natural life per basing month. Thereafter, defendant, $150 inability pay greater petition his to his per month, than asked the court sum to $75 as so to reduce the the decree plaintiff, answering, amount. averred that ought estopped to be because the defendant postnuptial agreement adjust- into a had entered rights, property ing under the terms their of which for had, himself, his defendant heirs, executors plaintiff’s administrators, in consideration of and pay plaintiff agreed covenant, the sum day fifteenth during of each month $150 her natural life, and security that, term such monthly defendant payments, plaintiff had joined Holmes, Z. deeding to one Byron Block 22 in McMillan’s Portland, Addition to East him Oregon, such held trust pur- pose. She further asserted in consideration the above covenants had relin- agreement's she quished all her right and interest in and to the property both defendant, real and personal. She averred that she had carried out terms her contract the deed. further executing She averred had been proved agreement made for a valuable consideration and in order adjust rights between the settle Mr. parties. Justice rendering Wolverton, decision for held that carry- ing into effect provisions entered into between a by which , the wife, in consideration all releasing interest in certain real and personal property, is to receive *7 month for per support $150 her her life during after caused the divorce husband’s misconduct, cannot afterward be modified the court without the consent of both parties thereto. Southworth of Treadwell, case supra,
The In that point. case the wife was in 1890, ground divorce on June the 5, of desertion. agreed that the alimony The of rate $150 month be allowed should the per on June written 1890, a to 21, effect was the order to be adopted embodied decree absolute when the such in if decree, any, be On March entered. should the divorce Upon made absolute. the was hearing of the hus- to the vacate decree petition band’s awarding ali- Oct. 1925.] ruling requested the
mony, wife divorced right alimony vested constituted a court that power and that, disturb, to which court had no petition was neces- maintained it before could be remarriage sary financial her to show that improved that she so condition the wife was alimony. longer required court declined no The requested ruling, held to that make the prima remarriage wife was of the divorced facie a nominal cause the reduction Supreme appealed sum. Court The case was re- it held that where Massachusetts, brought maniage a material the wife about change gave in her her in that circumstances, right supported by another man. The upheld court further the decision of lower court reducing to a nominal sum remarriage ruling prima constituted a facie alimony. cause reduction of the 4. There is no contention here that the wife ever brought any property into the estate of her hus band, or that the award of or maintenance relinquishment any property was based rights. remarried. She is is admitted her amply support able to her, he supporting her. Under this state facts, when marry present wife elected the divorced her legal right she waived her husband, claim husband, former from -a powered was em so as to fit the situation: Section Or. L. appealed order from is reversed and the de- far alimony, so as it divorce, relates
cree payment in this: modified, Phy accruing subsequent filing of the motion court below will be discontinued. party
Neither shall recover costs this court.
Reversed Decree Entered. Rehearing denied October 1925. Rehearing. On Petition 237.) Pac. petition, Klepper For the Mr. Milton B. and Mr. Magill. W. O. appearance
No contra. J. BROWN, On October16, 1922, Winnifred Phy W. was a decree of divorce from W. T. County, Oregon, the Circuit Court for Union pursuant parties, and, to a between the which part was filed in court and made a of. the property rights settlement decree, a and ali mony April petitioned had. On 12, 1924, provision for a modification of that court. awarding alimony the decree to his former ground on the peti that she had remarried. His appealed tion was denied. He to petition on June 16, 1925, his was allowed and de cree modified payment order of the court that the accruing subsequent filing motion in the court below be discontinued: See ante, 751). p. (236 Winnifred W. Clemans, formerly Phy, rehearing. Winnifred W. asks *9 1925.] Pht v. Pht. of date stipulation between parties, the August 31, 1922, property and purporting settle rights things: and provides, alimony, among other
“Whereas, parties living the hereto are apart and desire to make a settlement all of of matters "* property alimony and between them ,
“Now, prem- in consideration of therefore, and in ises, consideration the fact parties of hereto are living apart and will continue live apart, hereby agreed by and between hereto that party will, of the first part after execution of demand, this agreement, assign and and transfer, have transferred books of the Hot Lake Sanatorium, a corporation, ** 170 shares of stock in said Hot Lake Sana- torium, and will, within a reasonable time after crate demand, and deliver party second f. o. b. cars at part, Hot Lake, Oregon, Chickering baby grand piano now owned paid the first at Hot Lake, Oregon, and party part will pay said to said party alimony first part party second or $500 on follows: fifth day before of September, and 1922; $500 day on or before the fifth 1922; October, on or before the fifth of each day every $100 month thereafter for a period of not exceed which said months, payment shall not exceed aggregate sum which $7,500, payment alimony be in lieu all shall other alimony heretofore said court.” ordered
The next paragraph provides in the event a divorce that, shall be granted then either party, shall constitute settlement property and settlement of alimony, a full shall be taken as and complete “and settle- interests property of all ment between alimony and neither hereto shall be party the parties, com- nor either hereto party can pay, pelled recover, any more than as herein property set and such out, property agree- settlement full ment of shall all any rights, costs, attorney’s fees, suit whatsoever.” petition
We from the re- quote following hearing : *10 that
“The is to the court’s attention called fact in re- does it the appear nowhere the record spondent’s sup- present husband is able to amply port her that he in mediocre very other than Or ’’ circumstances. rendered in
Now, judgment turning court below, quote reading: we excerpt “In married the fall of defendant was # * that Clemans; one admission (upon John Doe husband de- of hearing) present made at her capable sup- and is supporting fendant n her.” porting in in mind statement of fact the above Bearing ability of the defendant’s relating to the decree court, this her, setting aside support relating of the decree fol- provision alimony, remarriage rule in cases of prevailing lowed wife. The courts many have times of a divorced said: abandons provision divorced wife made
“The
the estate
her
support
her
out
former
for
the decree
ade-
.husband
contracts
her
which she
second
support
quate
matter
that affects her own
It is a
happi-
marriage.
she is
about which
free
perfectly
and com-
ness,
choice. Whether
make a
she acts wisely
petent
* #
whether
she'
obtains as good
her election
her
support
adequate
as that
or as
are questions
abandoned,
about
she
which
which
no concern.
have
a matter
can
of her
courts
1925.]
v.
voluntary
own
election.” Stillman
Stillman,
v.
(39
Rep. 21).
Ill. 196
Am.
In
the case
This is the doctrine: Brown See v. 38 Ark. Brown, 324; Casteel, Casteel v. 38 Ark. Tremper Tremper, App. 477; v. 39 Cal. Morgan 868); App. Lowman, 557; Ill.
Hartigan
Hartigan,
The cites also 61 Pac. Henderson, 37 Or. 766). Rep. This case A. 48 L. R. 82 Am. St. study of the A careful her relief. can afford no averred and wife that the divorced facts discloses agree- husband’s proved of the in consideration that, relinquished right pay, all her had she ment to property, both real and valuable in and to interest evidencing thereby personal, a valuable considera- moving husband for to the divorced from her tion payments decreed. showing by at bar there is no "Winni In case 5. alimony was based that fred W. any proof neither was offered property consideration, any showing made Nor was there effect. notwithstanding she had remarried, her cir that, alimony should still be such were cumstances shows both a paid her. but it does show settlement, upon property was based awarded jurisdiction, In rights decree for wife. subject modification according varying cir entered, it was which parties. cumstances *12 Oct. 1925.] Pl-IY V. PHY. enacts: L.
Section or marriage' void declared be shall “Whenever a prayer such decree party whose dissolved, be cases entitled made in all shall be shall right part her individual in or third his undivided owned real estate whole in fee of the the addition in decree, time of such other at provided for maintenance decree for to the further duty and it shall be in Section 513; in accord- such enter a decree all cases to provision.” ance with provides:
Section or shall be declared void “Whenever power the court shall have the to further dissolved, *# follows: decree as recovery party in such “3. For the fault money, gross installments, amount of an as or may just proper party for such eon- other.” tribute to maintenance of the quoting from Section 514: Now, any (divorce) given, time after a decree “At upon judge or the motion thereof, the court of either power party, set alter, shall have aside, * * may provide much of the decree as so party either maintenance of suit.” stipulation pro- the written file herein Under alimony, party viding neither to the decree was petitioning for modification of the barred relating provision to maintenance, because the writ- ing which the court’s decree was based does contention establish the now itself made not of provision petitioner was the re- There settlement. no conten- sult of provision or evidence that answer tion payment relating right. any property stipula- based *13 Phy. alimony. lion did not determine the amount simply recited the maximum not that should exceed period payment and $7,500, limited to “not the probable to exceed 65 months.” It is word- that the ing stipulation only of the made, was not with knowledge provisions of but to of, conform to, the quoted Section 514, Or. which authorizes L., above, upon application party, the court, the of either alimony increase or amount of from the decrease required ability' by time to time, needs, the parties. party moving is circumstances of the petition proceed by authorized law motion or to the court that divorce. includ relevant should be received, “All evidence * *
ing original Fur evidence received at the trial. may party evidence and either introduce thermore, cross-examine witnesses.” Encyc. of
7 Standard p. 845. Proced., quotes opinion, dissenting
In Mr. Justice his Bean Marriage Keezer on and Divorce Section agree- (2 ed.), based on effect that on a will be not of the contract ment turn to Now, Section 772 of court. modified read: text-book the same remarriage “Generally wife divorced alimony, much or so as does terminates go minor children, to- the though consent entered the decree parties.” trial court likewise asserted It is 6. Supreme position than Court to better ain involving the basis facts ali determine hearing agreement. concede that, We mony procedure, the lower court usual has a under weigh opportunity to evidence better much 1925.] facts than to arrive at the truth from controverted appellate bar, the case But, has court. awarding’ the lower court its decree based wholly writing, made writing record us. The case is before writing heard anew identical here of that was before court below. The words writing, in in that this court as are to language given meaning. ordinary their From the *14 “alimony” we deduce that thereof, the word ordinary used in its sense. “Alimony is the allowance which is
compelled pay to for his maintenance while wife’s living apart is or after him, she divorced. support for been she has her * * recognize right The law will provision
and will maintenance and make his It her out of income or estate. founded is support obligation the marital and main- by and is tain, of this awarded the court in enforcement obligation duty.” Marriage and and Keezer, ed.), (2 § 660. Divorce says, Again, the author Section 674: * * “ The divorce with its incidental allowance duty simply beyond continues his de- compels perform him and but cree, it, does not change and its nature. The form measure of the duty changed, indeed but its substance remains are unchanged.” right rests the rela
7-11. parties. duty It is the husband tion support wife. when However, his she united is itman, with another becomes that man’s in Any duty furnish her maintenance. other doc repugnant public policy would be as an trine by by the courts. The award made nounced a debt due the but is not is main- v. 48 prescribed opinion tenance law. and See defined Lynde Lynde, Mr. Justice in J. 64 N. v. Pitney, Eq. (52 Rep. 736 Atl. L. R. Am. St. A. 471), jurist wherein the eminent held that wife’s permanent alimony personal right, claim to right. not a
In the instant did award case, designated personal property, wife certain that property is hers forever. also “overruled asserted have we
changed” opinions Henderson v. Henderson, supra,, Brandt, Brandt 40 Or. Pac. 508). justice In In this learned error. our opinion approval former we cited with followed the doctrine enunciated each of cases cited Phy, p. 751). ante, above. See policy Oregon, public declared Under woman must look to married support for her husband for herself. man who is woman whenever a married divorces her hus- And, another, chooses she must look to band and one, not to discarded other, *15 arising the out of status. herself Hence, petition deny able counsel’s we must for a re- hearing. Eeheaking Denied. J., dissents.
Bean, Dissenting.—I am unable to concur in BEAN, J., majority opinion question I herein. not do the the propriety modifying awarding
of decree a only, for maintenance it is where the where changed adjudication, since have the conditions upon any not based consideration of the decree rights property of the as Brandt v. Brandt, Phy. 1925-] but 510), 40 486 ás said 477, ( 508, 67 on the last-named Mr. as found Justice Wolverton, page:
“And proceeds where allowance a con the sideration of property brought the restitution the par reason of the marriage, or re accumulations, tition should be property the matter: Cole garded adjudication final 142 Ill. 19 Cole, E. Am. 109, Rep. N. St. 56, L. R. A. 811).” 16,
On October defend- 1922, the court Winnifred divorce ant, Phy, W. absolute against In W. T. plaintiff, regard to settlement property rights matters, and money found and partly court decreed as follows: “And it further appearing court rights herein parties settled were ** as shown by the record herein Adjudge, Order, W. T. within plaintiff, Phy, and Decree a reasonable after crate time, and deliver demand, b. defendant, to the f. o. cars Hot Lake, Oregon, Ghickering baby grand said that plaintiff piano, pay cash, defendant $100 before or day the 5th of November, on $100 fifth each day and every before month there- a period after to exceed sixty-four (64) months.” record shows had been married years. April
about On plaintiff motion modify the decree filed and discon- the reason tinue the defend- remarried, which supported ant had by affidavit. findings The court made of fact and denied the modify the decree. In the motion findings the decree denying which motion fact, sets out stipula- based, Or.—it *16 original parties upon which the tion the property rights, regard in settlement alimony agree- money matters and which based, original in in de- ment was substance embodied appears stipulation that cree. From the living separated parties were had theretofore and things, apart. among recites, The other following: parties living apart hereto are “'Whereas, desire to a settlement of all and property make matters of and between them this and agreement hereby do make such settlement of said rights property prejudice either without party divorce or so far as the relations specifically hereby parties and concerned, are said agreement shall that this not be taken as an state party agreement hereto shall that either shall agreement secure a but this to be divorce, only by parties hereto and taken rights property as a settlement of only. prem- in consideration “Now, Thereeore, the fact that ises and consideration apart parties living hereto are will continue hereby agreed by apart, it is and between live parties party part will, hereto of the first agreement, after execution of this demand, *# ” (Here agree- assign follows transfer, substantially decree.) forth in set ment agreement concludes thus: agreed parties and between the “It is .further any divorce case to either hereto any any time suit, property alimony, is a settlement complete taken as a full be settlement of shall par- between interests and all ties and compelled party hereto shall neither party any pay, hereto nor either can recover more *17 Phy. v. 51 1925.] alimony property than out, or as herein set alimony agreement, property such settlement property rights, in at- shall be all costs, full for torney’s any alimony whatsoever, in fees, suit place pending any whether now or hereafter begun.” (Italics ours.) plaintiff appealed from the decree. provides 514, L., Section Or. follows: as Modify any “Power Court Decree. At time given, judge after a decree is court or thereof, the party, power the motion of either shall have to set aside, alter, or so much of decree may provide appointment as the care and for the trustees for custody minor or the children, nurture and education or the thereof, maintenance party of either suit.”
In the note to that section we read: alimony “A modification of the clause of divorce a only by original can be made motion in suit, a jurisdiction as under this the court section, retains purpose: Speake, Corder v. 37 Or. (51 647).” Pac. question weAs understand the matter, determination in this suit is whether de- agreement regularly cree for based settling prop- made and sanctioned the1court rights erty parties, of the property where “such settlement shall be property rights, full etc.,” for all can inodified subsequent impairing without decree the obli- parties. gations the contract of assumed denying reason for The trial the mo- modify, stated: tion stipulation was a settlement of “If power modify rights, court has then the no stipulation. upon the If, founded however,
52 sup simply for was allowance to the defendant port, may the court discretion relieve its plaintiff alimony. payment Hen of the (60 61 141 Pac. derson v. 136, 37 Or. Henderson, 766); 508); Rep. L. R. Pac. Brandt v. 82 Am. St. A. (67 Pac. Brandt, Or. 477 11 Ann. Pac. 267, Cohen v. Cas. 150 Cal. Cohen, 520); Hogerty, Hogerty 188 Cal. 79). It seems to me prop purports as it erty rights be,—a settlement parties, provision for and the payment not an allowance *18 ** simply The the for the of defendant. paid install $6,500 fact that the sum ments was to be in of matter: of month does not affect the $100 651). Lally Lally, In v. W. Wis. N. supra, case of v. the de Henderson, the Henderson pro attempted unsuccessfully cree to be modified pay of vided that $150 in the case of the sum the defendant was during a month her natural life. Furthermore Marregang, Marregang D. 31 S. 341), N. W. held the in it is that court gross decreeing in sums takes con into probable sideration the of duration of the life of each parties possi the to the contract, the remarriage sickness, of and and all other con bilities gross that an allowance in and is res ditions, adjudieata. to me for‘the court to hold that seems “It payment $6,500 in installments of a month $100 of agreements of entered em- was not one into property rights in the settlement bodied parties, for the would be court to do violence stipulation, which the have entered into.” original judge who rendered the de-
The same passed motion to had cree testimony him. The case before taken record original hearing is not contained in the trial court had the while the benefit record Oct. 1925.] dark as testimony, this such a court court trial of the The discretion same.
to the determination matter into the enters somewhat S.), (N. question R. A. L. involved: See of the § Marriage Divorce, Keezer on note 1; recognize rule p. A multitude of cases 151. judicial find regard At least the discretion. in ings weight. great given be trial should meager contained matters From the affidavits plaintiff, T. Dr. W. record seems it large physician Phy, man and a skillful was a inequitable nothing in the there was affairs, dispute alimony. no There was of the allowance remarried. regard that the defendant fact is not established, it is well itself, This, compelling modification decree. cause for may modified, decree is one if the While strongly in favor of modifica- such a circumstance tion. ques general in relation rule of law following by the authorities, indicated
tion is opinions especially to the two call attention able we Mr. Justice herein re enunciated Wolverton, to. ferred *19 37 Or. Henderson, 145 141,
Henderson Rep. 82 Am. Pac. St. 136, 741, Pac. very thoroughly 766), which is a con- A. R. L. application by was an the case, former sidered of a modification decree of a divorce against him of his wife. in favor On Feb- rendered plaintiff was ruary the divorce the and in decree defendant, therefor the the required was to inter alia and defendant pay plaintiff, child and to to minor dur- the educate her natural sum of life, the ing term $150 the January ap- 6, 1897, On per defendant month. plied to have the amount reduced to last-named $75 per ability change in month on account his of the pay, occurring to of divorce since the decree was appears January rendered. before plaintiff rendered, defendant and .the adjusting agreement “settling entered into an and rights.” as between themselves their agreed pay per defendant to the amount of $150 plaintiff through plaintiff month bank, to and pay- defendant deed to secure such executed trust ment. The as was em- bodied in the decree. From decree in favor plaintiff denying modification alimony, appealed. defendant stating
Mr. Justice after facts, Wolverton, said: “We are now to determine whether the facts up by petition
set constitute a the answer to the defendant’s defense a modification of de- provides cree in far as it so for the maintenance of the divorced wife. The facts relied are by way estoppel sét forth to the defendant in- sisting upon being urged the modification, it binding agreement, a valid and based a suffi- cient was entered consideration, into and be- parties, having tween that, the decree been given pursuance rendered in thereof, neither party can now heard, without consent deny validity binding its other, force and effect.” thorough
After a discussion, reference to sev- opinion page cases, eral concludes on 600) as follows: conclude, therefore, “We consonance with these better authorities, latter withstanding rule that, not power authority has touching its decree of divorce awarding *20 pHY. 1925.] PlIY V. money of a sum of the husband or wife for the maintenance of either subsequent the other they entering yet, decree, nevertheless, may agree proper touching in a case the amount of subject payment, such sum and the manner of its approval validity of the court as to its good public policy, morals and as conformable to and in further consideration status and con- parties relating question dition of the its equability adjustment; fairness when such that, but approved an has been the solemn decree it becomes forever binding, degree to the same and with like effect ordinary parties admittedly contracts between sui juris, subject and is not to revocation or modifica- except by tion, the consent thereto (Italics ours.)
After a careful opinion examination of the in the Henderson we case, are led to believe that while prevails different rule in some this court states, is committed to the doctrine announced in that applied which if case, to the case in would hand result in an affirmance of the decree of trial principles applied court. in the Henderson case, it is the understood, same as that involved case hand. In Buck v. Buck, Ill. 241, decree was reciting, among things, other that, having parties upon been settled between the accordingly stated, basis was therein decreed that pay to the wife $12,000, the further $1,000, the value of certain sum furniture and that he should maintain silverware, and educate adopted Supreme child. The case went ground urged as a reversal Court, it was allowed the court excessive oppressive. But it was held that the husband, *21 v. 56 having’ consented to provisions decree, should ag’ainst have relief voluntary no his own the court ag’reement, saying: “Whether or whether too high, court any had lawful to make authority provision for the maintenance adopted daughter with- out the consent of the plaintiff error, it necessary now express for us to opinion. competent for the plaintiff in error consent to and, such decree, done must remain having so, it binding forever him.” on 2
In & Divorce Schouler, Marriage Sec- ed.), (6 tion we read: 1829,
“The
court
cannot
decree
entered
modify
consent of all parties
as to
on
alimony, or based
contract
and an
agreement may
allowance based on
not be regarded
‘alimony’
subject
change
but
it
been held
has
statute
author
court
izing
apply
alimony will
to a
based
'a
Citing:
on
settlement.”
Van
Sickle
Carr v.
v.
172 Ill.
Harmeyer,
App. 218;
Carr,
“Alimony Where on consent of all based or on con parties, court has no power tract, modify the terms alimony.” Citing: Mathews v. agreed Mathews, (193 Pac. 586); Le Beau App. 49 Cal. 497 Beau, 28). Contra: 80 139 v. Le N. H. Atl. (114 Emerson, Emerson 120 584 (87 v. Md. Atl. (as 1033) Pny. v. 57 1925.] depends tlie decree and not on con validity Wallace Wallace, N. H. tract) ; 256 Atl. 13 Ann. 293). Cas. Roby Roby,
In Idaho, Ann. Cas. 50), court said:
“The trial is in a better than this judge position money to know the amount of necessary the payment in the costs disbursements prosecution of an appeal, ability meet such requirements. He knows all facts situation condi- case, tion of the parties.”
In Ex parte Lohmuller, 103
(129
Tes. 474
S. W.
29 L. R. A.
(N. S.)
was said:
303),
“In all ordinary
cases the lower court
is the one
which should be called
to act. To
it parties
can have ready
access,
easily procure
evidence,
the production
of which
appellate
before
an
would often be both inconvenient
and costly.” Citing:
Lane,
Lane v.
26 App. D. C. 235
Ann.
(6
683).
Cas.
Haddock
v. Haddock,
See, also,
App.
75
Div. 565
(
In 19 C. J., page 272, we read: gross. “Allowance in Statutes have been held to apply a to decree awarding an allowance in or gross," allotting specific making in fee, division or distribution the husband’s final estate; but it has also been held that the court has power under such to statutes revise modify judgment cash whether payable gross Citing: Fenn v. Fenn, 23 Ohio inor installments.” Cody v. Cody, 47 (N. S.) 205; C. C. 456 Utah, (154 Zentzis v. Zentzis, 952); Pac. 163 342 Wis. (158 Smith v. Smith, 284); Ala. 264; Plaster v. N. W. 45 Plaster, Martin v. Martin, 195 Ill. App. 290; 47 Ill. Plotke, Plotke v. 32; 177 Ill. App. 344; Griswold v. Griswold, App. 269; Barkman v. Barkman, 111 Ill. Ill. Shaw v. Ill. Shaw, 94 App. 440; 59 App. 268; v.
58
(56
Ann.
Smith,
In R. follows: as declared power “Notwithstanding the court has and au- touching modify
thority the its of divorce to money of for main- sum the of a allowance yet, she and her nevertheless, the wife, tenance touching may agree proper in a case the pay- the manner of sum and its of such amount approval subject to morals and as conformable to the court the as ment, its good validity in Oct. 1925.]
public policy,
of the
in further consideration
relating
parties
the
and condition of
status
question
the
adjust-
equability fairness and
of its
generally
when
hold that
ment. The authorities
by
agreement
approved
the solemn
such
has been
binding, to
decree of the
the
it
forever
court,
becomes
ordinary
degree
same
and with
effect as
like
admittedly
juris
parties
sui
contracts between
except
subject
is not
revocation
modification
or
by
But
the
of the
thereto.
where
consent
agree-
entirely dependent on
allowance is not
the
the
subsequent
power
parties,
ment of the
fication cannot
the
modi-
by
as
controlled
for
toto;
be
it
by
the court
bound
such
first
not,
instance,
the
agreement concerning
the
be
amount of
agreement
allowed to
can-
fortiori
portion
altering
not hinder the court in
its
upon
own decree of allowance which is not based
agreement;
the
not
based
on the other
can-
hand,
alter
in so far
decree,
as
parties,
contract of
for such a
modification of the decree
no less
would be
than
modification of the contract itself.
It has been held
contrary,
however,
a decree for
subject subsequently
entered
consent
modified
ity
court,
the reason that the valid-
depends upon
judicial
of such an allowance
agreement
court and
sanction
parties.
reaching
of the
In
conclusion
the courts
proceeded ground
have
that there could be
no decree without the intervention
court,
agreement
simply
ques-
evidence of the
tions involved, submitted for its consideration.
perceive,
is rather hard to
however,
line of dis-
tinction thus drawn between a decree by
ment entered
parties,
any
judg-
other
consent, inasmuch
even
the lat-
express
is based
sanction
ter
or
on the
Pryor
implied.!’
Pryor,
In 2 L. R. A. we IV, read: “Alimony may agreed upon by parties be through during and also after or trustee,
pending of an case divorce; action and in that agreement, the decree when embodies it agreement terms of the if it enforced, will be even require beyond should life continuance husband.” among
This is followed a wealth of authorities, which is the case of Stratton, Stratton v. Me. 77 Rep. 779), during pendency Am. where of cross-libels for divorce into entered agreement an that, of divorce entered case the husband’s libel, two referees should determine what the wife she should and how receive, report should receive and that the of the referees it; part binding should be made a decree, parties. on the Their award and were extended on the record. award was to * * “during annuity natural her life, wife paid quarterly.” Upon of divorce, to be a decree alimony according court ordered “that * * paid pro received and award therein ’’ paid The defendant for a ceased time, vided. then finally paying, died. an action for debt it was
In held in effect that language especially where states to continue after the death of the authorities hold that husband, will so page note we find In the same continue. 242': Storey, “In Ill. Adams E.N. 1925.] *25 Rep. 790), 25 Am. 11 L. R. A. St. the widow alimony granted claimed dower in addition to the Storey Storey, supra, v. but the court held that the consent decree was intended to be in lieu of dower, refused it.” well It is established by a decree rendered consent cannot be reviewed upon appeal. This for the reason that are by their It is difficult to bound valid contracts. any principle between con- discern distinction in portion by sent decree entered decree and a of a agree- especially parties, of when such consent property ment relates to interests. involved plain Phy from the that Mrs. por- not not would or did release her claim to Phy, property. including tion Dr. of the dower payment, pay $6,500 without the covenant monthly modify the installments. To decree change parties, solemn contract approved by which was the court embodied in decree, and make contract for a new them. property settlement of the interests The and the adjustment of the under terms agreement segregated. The cannot be release property Mrs. claims of of Dr. was promise pay made in consideration his property deliver both the mentioned and the ali- mony. stipulation. This is shown The case it would if stands the same as in the settlement property rights agreed of their the husband had convey conveyed and afterward had to the wife as her in lien of certain real share estate; relinquished right wife had her and the to all other the husband. The whole matter was original sanctioned settled adjudicata. opinions is res in the Her Aun Falls Pub. Co. Pub. Co. Klamath Brandt v. case of Henderson v. Henderson and changed. supra, Brandt, be overruled or should not It is did not direct understood that counsel referred attention matter the court to the above passed upon and that the same opinion former Mr. Justice Brown. rehearing A matter should given further consideration. September
Submitted on brief 1925. affirmed October KLAMATH HERALD *26 PUBLISHING COMPANY COMPANY FALLS PUBLISHING et al. 244.) Pleading—Construction Instrument Set Out Pleader is for Court,- Unaffected Pleader’s Conclusion. relies, out pleader When sets instrument on which its con- 1. he gains nothing by adding struction for he thereto legal opinion of the effeet of the document. his — Complaint Municipal Corporations Enjoin in Suit Officers Printing Awarding Contract Held for Demurrable. from city enjoin entering from In officers into contract 2. suit ground plaintiff’s bid city printing therefor was for lowest, demurrable, there held where was no mention complaint necessary determine to enable whether fact data printing lower than for such that of defendant. bid plaintiff’s Corporations—Validity Printing Municipal of Contract City Party. Adjudicated Without city enjoin entering officers into contract In suit 3. validity adjudicated of contract cannot be city printing, with- interest, being party brought city, jurisdic- real under as a out court. tion of Judge. A. L. Leavitt, Klamath: From In Banc.
Affirmed. L.C. 327. 14 R. See 3.